Citation NR: 9727553
Decision Date: 08/07/97 Archive Date: 08/14/97
DOCKET NO. 89-00 008A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan,
Puerto Rico
THE ISSUE
Entitlement to restoration of a 100 percent disability
evaluation for schizophrenia, chronic, undifferentiated type.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate
for Veterans Affairs
WITNESSES AT HEARING ON APPEAL
Appellant and his mother
ATTORNEY FOR THE BOARD
Gary E. O'Connor, Associate Counsel
INTRODUCTION
The appellant served on active duty from April 1969 to
October 1970.
This case comes before the Board of Veterans’ Appeals (the
Board) on appeal from a November 1984 rating decision of the
San Juan, Puerto Rico, Department of Veterans Affairs (VA)
Regional Office (RO), that reduced his disability evaluation
from 100 percent to noncompensable.
In a December 1986 decision, the Board remanded the case to
the RO so that the appellant could be hospitalized at a VA
facility for a period of observation and evaluation in order
to determine the nature and extent of all his psychiatric
symptoms.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that a 100 percent evaluation more
accurately reflects his level of disability.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1996), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the record supports the claim
for entitlement to restoration of the 100 percent evaluation
for schizophrenia, chronic, undifferentiated type.
FINDINGS OF FACT
1. All evidence necessary for an equitable resolution of
this case has been secured.
2. The 100 percent evaluation for schizophrenia, chronic,
undifferentiated type, had been in effect for more than five
years at the time of the 1984 rating reduction. The
reduction was based on a single evaluation without compliance
with 38 C.F.R. §§ 3.343, 3.344.
CONCLUSION OF LAW
The reduction in evaluation of schizophrenia, chronic,
undifferentiated type,
from 100 percent to noncompensable is void. 38 U.S.C.A. §§
1155, 5107 (West 1991); 38 C.F.R. §§ 3.343, 3.344(a)(c)
(1996); Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
An April 1971 rating decision granted the appellant service
connection for schizophrenic reaction, with a disability
evaluation of 100 percent effective October 10, 1970. A
November 1984 rating decision decreased the appellant’s
evaluation to noncompensable based on a July 1984
examination. In the decision, the RO noted that a routine
examination intended for October 1971 was never held, the
appellant failed to report for an examination scheduled for
December 1983, and his payments were suspended as of June 1,
1984.
The circumstances under which a disability evaluation may be
reduced are specifically limited and carefully circumscribed
by regulations promulgated by the Secretary of the VA.
Dofflemyer v. Derwinski, 2 Vet.App. 277, 280 (1992). If a
rating for a disability that is subject to temporary or
episodic improvement, such as schizophrenia, has been in
effect for more than five years, that rating may not be
reduced on the basis of one examination unless all the
evidence of record clearly warrants the conclusion that
sustained improvement has been demonstrated. 38 C.F.R.
§ 3.344 (1996). When the provisions of 38 C.F.R. § 3.344 are
not applied, the decision to reduce the veteran's disability
rating will be found to be void ab initio as not in
accordance with the law. Dofflemyer, 2 Vet.App. at 280-81.
Another regulation provides:
Total disability ratings, when warranted
by the severity of the condition and not
granted purely because of hospital,
surgical, or home treatment, or
individual unemployability will not be
reduced, in the absence of clear error,
without examination showing material
improvement in physical or mental
condition. Examination reports showing
material improvement must be evaluated in
conjunction with all the facts of record,
and consideration must be given
particularly to whether the veteran
attained improvement under the ordinary
conditions of life, i.e., while working
or actively seeking work or whether the
symptoms have been brought under control
by prolonged rest, or generally, by
following a regimen which precludes work,
and, if the latter, reduction from total
disability ratings will not be considered
pending reexamination after a period of
employment (3 to 6 months).
38 C.F.R. § 3.343. The appellant’s 100 percent evaluation
was in effect from 1970 to 1984, well over five years. In
reducing the appellant’s evaluation, the RO relied only on
the July 1984 examination. The Board has been presented with
violations of regulations. The evaluation was based on a
single evaluation. There was no consideration of whether
improvement was obtained under ordinary conditions of life.
The rating panel failed to consider §§ 3.343 and 3.344.
Whether a reduction would have been warranted ultimately is
not for consideration. The complete failure to follow
sections 3.343 and 3.344 constitutes clear and unmistakable
error.
Thus, the Board concludes that the prior 100 percent
disability evaluation for the veteran's schizophrenia,
chronic, undifferentiated type, must be restored.
ORDER
Restoration of a 100 percent disability evaluation for the
schizophrenia, chronic, undifferentiated type is granted
subject to the laws and regulations governing the award of
monetary benefits.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
38 U.S.C.A. § 7102 (West Supp. 1996) permits a proceeding
instituted before the Board to be assigned to an individual
member of the Board for a determination. This proceeding has
been assigned to an individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1996), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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